The clarion. [volume] (Jackson, Miss.) 1883-1888, 1887-04-06
SID MAYEs,
THE STATE.

SID MAYES,
v.
The STATE.
Appeal from the Circuit Court of la
Fayette county. Hon. w. S. Feath
erston, Judge.
w. v. Sullivan, for the appellant.
T. NJ. Miller, Attorney General, TO
the State.
The case is stated in the opinion.
COOPER, C. j., delivered the opinion o
the Court.
The appellant has been convicted o.
the murder of one Albert Lester, anc
assigns many errors in the proceeding.
in the court below. We deem it unnec
essary to consider the many assignments
many of which are without the sem
blance of merit, since the judgment
must be reversed on the point hereinaf-
ter indicated.
The homicide occurred at a socia
meeting which had been protracted
through the night, during which time
many of those present had INDUCED in
the excessive use of intoxicating liquor
number of fights resulted, and among
these was one between the deceased and
one Kirkwood. According to testimo-
nv of the witnesses for the State, it APP
pears that while Kirkwood and deceased
were fighting the appellant ran in be-
tween them, threw his arm around de
ceased and cut him with knife across
the stomach, infiicting the wound from
which death resulted. On the other
hand the testimony of other eye-wit-
nesses who testified on behalf of the
appellant is that he did not infiict any
wound on deceased, but only separated
him and Kirkwood, and that Kirkwood
gave the mortal blow. The dying dec
Iaration of deceased, made several days
after the injury, was admitted in evil
dence, and by it it appears that the
appellant was the guilty agent. But
testimony tending to impeach the cred
Utility of this dying declaration was
introduced by the appellant. The court
below, over the objections of the defen-
dant. permitted witness (Henry Wor-
tham) to testify to statement made by
deceased under these circumstances
When deceased was cut he Immediately
turned and ran distance of from one
hundred to one hundred and ten yards
pursued part of the way be the APP
pellant, who repeatedly snapped pistol
at him, but who turned back before
deceased ceased running) and then
turned into the woods and lay down
The witness Workman walked up in the
direction in which deceased had gone,
and when he had gone part of the dis
lance he heard one Lynch call out to
him saying, "Here is Albert out in the
woods with his CUTS cut out" The
witness then went to where deceased
was lying, and before getting there he
heard him and Lynch engaged in con-
versation. Witness reached deceased
as nearly as he could fix the
time, in about FIVE minutes after the
wound had been given, and when he
came up, deceased said to him, Henry,
Sid (the appellant) has cut my CUTS out;
did you see him p
Upon objection to this testimony be-
ing made, the learned judge ruled that
the statement of the injured party was
SO recently made after the wound had
been given, that it was part of the res
gestae, saying that he did not think
sufficient time had elapsed to warrant
the suspicion of fabrication.
An examination of the approved text
writers and of the decisions to which
they refer discloses, especially in the
decisions of American courts, q some
what loose regard for well recognized
rules governing the admissiblity of evil
dence. That hearsay testimony cannot
be given is universally admitted by the
courts which have from time to time